Opinion
04-11-2024
In the Matter of Stephen PHILBIN, Petitioner–Respondent, v. The CITY OF NEW YORK, et al., Respondents–Appellants.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Julie Steiner of counsel), for The City of New York, appellant. Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for New York City Housing Authority, appellant. Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York (Richard M. Steigman of counsel), for respondent.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Julie Steiner of counsel), for The City of New York, appellant.
Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for New York City Housing Authority, appellant.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York (Richard M. Steigman of counsel), for respondent.
Gesmer, J.P., Shulman, Pitt-Burke, Higgitt, JJ.
Order, Supreme Court, New York County (J. Machelle Sweeting, J.), entered on or about October 12, 2022, which granted petitioner’s motion for leave to file a late notice of claim, unanimously reversed, on the law, without costs, and the motion denied.
[1] Petitioner’s motion for leave to file a late notice of claim against respondent City of New York should have been denied, as the claim against the City plainly lacks merit (see Alladice v. City of New York, 111 A.D.3d 477, 478, 974 N.Y.S.2d 437 [1st Dept. 2013]). It is undisputed that the City did not own the property where petitioner was allegedly injured, and that respondent New York City Housing Authority (N.Y.CHA) owned the property.
[2–4] The motion court improvidently granted petitioner’s motion for leave to file a late notice of claim against NYCHA, because petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim (see General Municipal Law § 50–e [5]; Matter of Grajko v. City of New York, 150 A.D.3d 595, 595, 57 N.Y.S.3d 11 [1st Dept. 2017], appeal dismissed 30 N.Y.3d 1011, 66 N.Y.S.3d 222, 88 N.E.3d 382 [2017], lv denied 31 N.Y.3d 910, 2018 WL 2977740 [2018]). Petitioner did not show that NYCHA acquired actual knowledge of the essential facts constituting the claim within the statutory period, or a reasonable time thereafter (see General Municipal Law § 50–e [5]). There is no evidence that NYCHA received petitioner’s workers’ compensation claim forms, which, in any event, make no mention of the allegations against NYCHA (see Colarossi v. City of New York, 118 A.D.3d 612, 612–613, 989 N.Y.S.2d 24 [1st Dept. 2014]; Mehra v. City of New York, 112 A.D.3d 417, 418, 976 N.Y.S.2d 55 [1st Dept. 2013]). Petitioner’s assertion that he did not learn of the seriousness of his shoulder injury until months later did not constitute a reasonable excuse for his delay in serving a notice of claim, as he filed the workers’ compensation claim a few weeks after the accident (see Matter of Grajko, 150 A.D.3d at 595, 57 N.Y.S.3d 11).
[5] Furthermore, petitioner failed to demonstrate the lack of substantial prejudice to NYCHA through the photographs he took of the accident area and of the scaffold on which he was allegedly injured (see Matter of Baum v. City of New York, 137 A.D.3d 611, 612, 26 N.Y.S.3d 849 [1st Dept. 2016]). The photograph of the scaffold showed a disassembled scaffold that was not in the same condition as it was at or around the time of the accident (see Seif v. City of New York, 218 A.D.2d 595, 597, 630 N.Y.S.2d 742 [1st Dept. 1995]). Petitioner’s assertion that the scaffold was disassembled before the expiration of the 90-day statutory period was unsupported by the evidence. A scaffold is unlike a transitory condition such as debris at a construction site (compare Matter of Ferrer v. City of New York, 172 A.D.2d 240, 241, 567 N.Y.S.2d 734 [1st Dept. 1991]).